Posted on Mon, Feb. 06, 2006


Some lawmakers who backed malpractice reform now wonder if it went too far


ASSOCIATED PRESS

The repetition of pulling large sheets of chewing gum from an assembly line, cracking them in half and heaving them into a machine at the nearby Wrigley factory took its toll on Pat Wright.

After more than 20 years in the factory, she could hardly raise her left arm above her shoulder and couldn't bear to lie on it at night.

She finally went under the knife in 2003, but after the surgery she still felt pain. Early last year, another surgeon found the problem: about a half-dozen bright blue metal sutures that had mistakenly been left behind in her shoulder.

Ever since, Wright has been searching for an attorney to take her malpractice case, but they all have refused, citing a new state law that puts a $350,000 cap on jury awards for a malpractice victim's pain and suffering.

Because it can easily cost $100,000 to get a malpractice case to trial, the gamble simply isn't worth it for attorneys in Georgia anymore, and now some of the same lawmakers who backed the cap are wondering if the law was too extreme.

Just after Wright learned about the sutures in her shoulder, state lawmakers 50 miles south in Atlanta were overhauling Georgia's medical malpractice laws.

Following the model of states including Texas and California, Georgia's Republican-led Legislature capped jury awards and made it harder for emergency room patients to win malpractice awards by placing a higher burden of proof on the plaintiffs.

Gov. Sonny Perdue signed the bill into law at an Atlanta hospital, surrounded by applauding doctors and administrators, saying it would improve access to health care throughout the state.

Doctors and hospitals contended the measure, dubbed "civil justice reform," would suppress rising malpractice insurance rates. They said doctors were leaving Georgia - especially rural areas - at an alarming pace and told lawmakers it would encourage doctors to stay.

Business lobbies, too, threw their weight behind the bill because it encourages early out-of-court settlements and penalizes parties who file frivolous lawsuits.

But trial lawyers argued that limiting damage awards puts an arbitrary price on a victim's life, and that the state's medical insurer fostered a false crisis by driving up premiums in a market with no competition.

The Medical Association of Georgia, one of the most vocal supporters of tort reform, said the law has transformed the state into a favorable environment for doctors. Anecdotal evidence shows fewer malpractice claims filed, and those that were have been settled more quickly, said David Cook, the group's executive director.

Cook added that steadying malpractice premiums have also stemmed the flow of doctors leaving the state.

Pat Wright said she's one of the unintended consequences of the law.

Since her surgeon found the metal sutures in her shoulder, she's appealed to at least six attorneys. Each has turned down her case, citing the new law. Another problem: The two-year statute of limitations on her case may have run out, but since the sutures were only found last year, lawyers have told her she's still got a case.

She just can't find one to take it.

"I don't feel like I've been done right," she said. "Somebody should've taken my case."

Others have had problems finding attorneys, too. Willie Davis' wife, Janie, died of a ruptured aorta minutes after leaving a Perry hospital, the victim of what Davis says was a misdiagnosed heart condition. Since then, he's been sent packing by six lawyers unwilling to handle his case.

Atlanta attorney Joe Weeks said two years ago he probably would have represented Davis. But Janie was a 68-year-old homemaker, with no lost wages to recover and no medical bills to repay.

"All we had is the value of her life. And the Georgia Legislature said the value of her life is $350,000," Weeks said.

When factoring in the cost of taking such a case to trial, Weeks said it wouldn't be worth it.

The medical association's Cook said claims that some people can't find attorneys may be overblown. He said the $350,000 cap only would apply to a small fraction of the cases filed each year, as many awards aren't that lucrative.

In Georgia's Capitol, an undercurrent is rising among some Republicans who argue that the law may have gone too far.

A handful of GOP lawmakers support a plan to roll back a portion of the tough standards passed last year. The proposal would repeal the standard of "gross negligence" that malpractice plaintiffs now must prove in cases involving emergency room doctors.

"There were some who felt like it went too far," said Sen. Joseph Carter, R-Tifton, who proposed the revisions.

Sen. Preston Smith, chairman of the powerful Judiciary Committee, said he hasn't ruled out taking up Carter's bill or other proposals, particularly those seeking to shore up the law as courts continue to chip away at it.

State judges have struck down parts of the law in 16 cases, ranging from rules governing which venue the malpractice trials can take place to the stricter standards for expert witnesses, said Allie Wall, director of consumer advocacy group Georgia Watch.

Away from the legislative wrangling, Wright is much more worried about her work shifts, which will soon expand from 10 to 12 hours a day. She asked her company to put her on "light" duty, but scraping gum and packing boxes proved worse on her shoulder, so she returned to her familiar machine.

Exactly one year since her fateful suture-removing operation, her arm still swells and aches. But she can raise it above her head now, new mobility gained from rigorous rehabilitation.

When she returns home each day about 6 p.m., she heads to the pulley system attached to a white door in her kitchen. A familiar exercise, she uses the rope-bound contraption to stretch her arm out for 30 minutes everyday.

"Even on Sundays," she added.

"Nobody knows how much pain I have gone through," she said with a faint shake of her head. "It helps me get to the next day."





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